Employment Discrimination | Schnapper | Winter Quarter 2013
Zimmer – Cases and Materials on Employment Discrimination (7ed)
Types of Actionable Discrimination:
Disparate Treatment: an employer treats certain people less favorable than others because of a protected characteristic. Requires evidence of discriminatory intent.
– Actions against an individual
– Systematic disparate treatment
Ways to Defend against a Systematic Disparate Treatment Case:
Challenge the factual basis of P’s case (e.g. deny that a specific policy exists)
Challenge the inference of discriminatory intent raised by statistics: Feeney
Admit to the discrimination but assert an affirmative defense.
Disparate Impact: a facially neutral employer practice falls more harshly on one group than another and cannot be justified by business necessity. Doesn’t require discriminatory intent.
Is a cause of action available to the Plaintiff?
Most statutes have a minimum employee requirement: includes hourly, part time, on-leave employees. This is an element for relief, not a requirement for jxn. (meaning it’s a jury issue).
Meaning of “Employee”
Title VII defines an employee as an “individual employed by an employer.” Job titles or the existence of an employment contract are not necessarily determinative. Partners at law firms are generally not “employees,” unless it is a particularly large firm.
Independent contractors are not protected under Title VII (use § 1981 instead).
To determine whether a hired party is an employee or an independent contractor, courts should weigh all factors and aspects of the parties’ [using an undefined weighting scheme].
Factors to Be Considered (none are decisive):
– Hiring party’s right to control the manner + means by which the product is accomplished,
– Source of the instrumentalities and tools,
– Location of the work,
– Duration of the relationship between the parties,
– Whether the hiring party has the right to assign additional projects,
– Extent of the hired party’s discretion over when and how long to work,
– Method of payment,
– Hired party’s role in hiring and paying assistants,
– Whether the work is part of the regular business of the hiring party,
– Whether the hiring party is in business,
– Provision of employee benefits, and
– Tax treatment of the hired party.
Lerohl v. Friends of Minnesota Sinfonia (8th Cir. – 2003): Musicians in an orchestra are independent contractors when the company doesn’t provide benefits and the musicians retain the power to choose and back out of events (freedom-of-choice principle weighted heavily).
Intentional Discrimination
When is an Action Sufficiently Adverse?
Title VII prohibits discrimination in the “terms, conditions, or privileges of employment.”
This is phrased in broad language based on Congress’s intent to bring the widest possible range of employment decisions within the scope of Title VII. It includes financial consequences (except in the 5th Cir.) and conditions creating a hostile work environment.
Lower courts require a material difference in the terms, conditions, etc., to distinguish from ordinary incidents of employment/day-to-day travails. This is a fact-intensive analysis.
Requiring workers of a protected category to work longer hours to obtain the same pay can be a material difference in the terms and conditions of employment, and can constitute an adverse employment action. However, the worker must produce evidence that people of the protected group had to work longer for the same pay. Minor v. Centocor (7th Cir. – 2006).
Failure to Promote + Benefit Incidental to Employment:
– Even if the employer is free to not provide a benefit under an employment K, once a benefit is given, it may not be doled out in a discriminatory way.
– Failure to promote may be actionable when it is “part and parcel” of the employment relationship, even without an explicit agreement in the employment contract.
– Hishon v. King & Spalding (1984): If partnership really is “a matter of course” after 5/6 years at P’s firm, she must be considered without regard for sex.
Discrimination “Because of…”:
Liability requires that the protected trait actually motivated the employer’s decision.
For a disparate treatment claim, the employee’s protected trait must have actually played a role in the employer’s decision and had a determinative influence. Reeves.
The ADEA is not implicated if an employer’s decision is motivated by factors other than age, even if the motivating factor—like pension status—is correlated with age. An employee’s age is distinct from his years of service and is not based on an age stereotype. P’s claim might have been actionable under ERISA, but not the ADEA. Hazen Paper Co. v. Biggins (1993).
Methods of Proving Intentional (Individual) Discrimination:
1. Produce direct evidence of discriminatory motive
2. Produce circumstantial evidence of discrimination—direct method
3. Establish a rebuttable presumption of discrimination by proving a prima facie case.
4. Establish that the forbidden classification was a motivating factor for the adverse employment action under Price Waterhouse.
1. Direct Evidence: must be closely related to the challenged decision. Doesn’t require the fact-finder to make any inferences. If believed, this establishes a fact in dispute on its face. E.g.:
– Giving an illegal reason at the time of the decision,
– Announcing bias related to that kind of decision, but not at the same time,
– Recent statement of bias, not necessarily about the employment action,
– Other strong evidence of bias (e.g. all women were fired at the same time—the judge can admit these witnesses as a matter of discretion. Sprint case.)
2. Direct Method—Circumstantial Evidence: In the 7th Cir., this includes anything other than direct evidence that leads to an inference that the protected trait was a motive.
3. McDonnell Douglass v. Green Burden-Shifting Scheme (1973):
Step 1: To create a rebuttable presumption of discrimination the complainant carries the burden of proving, by a preponderance of the evidence, the elements of a prima facie case:
1. He belongs to a protected group
2. He applied and was qualified for a job for which the employer was seeking applicants,
[For firing, some circuits require P to prove that he or she was doing “satisfactory work”.]
3. Despite his qualifications, he was rejected [or discharged], and
4. After his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.[Was replaced by a person outside the protected group.]
Step 2: Once a prima facie case is established, the burden of persuasion shifts to the employer to rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for the rejection.
– Honest Belief Rule: D must have believed the reason to be true when it took the challenged action. It only has to be subjectively, not objectively, legitimate.
– Evidence must rise to the level of raising a genuine issue of f
fired P anyway).
“Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”
A mixed-motive jury instruction is never proper in an ADEA case.
In Gross v. FBL Financial Services (2009), the Court rejected the Price Waterhouse mixed-motives analysis in ADEA claims. P must prove, by a preponderance of the evidence, that age was the but-for cause of the challenged action.
The circuits are split as to whether mixed motives analysis applies in ADA claims. It is also unclear whether mixed motives analysis applies for retaliation claims—the Court is currently hearing this issue in University of Texas v. Nassar.
Intent of Multiple Decision-Makers:
Agency Law: A company is liable for its employees’ discriminatory actions that are within the scope of the worker’s job duties.
2 main kinds of multi-decision-maker structures:
1. Collegial (bd./committee): Unnecessary that a majority of members share a particular intent—1 or more opinion leaders may be influential enough to determine the result.
Barbano v. Madison County (2nd Cir. – 1990): The board was tainted and deemed to have discriminated as a whole where it tolerated one member’s discriminatory conduct and refused to ask nondiscriminatory questions.
2. Hierarchical: company will be liable if the decision-maker acted with discriminatory intent or under the “cat’s paw” theory, where the decision-maker didn’t actually make the decision because a worker w/ discriminatory intent manipulated him. Staub.
Staub v. Proctor Hospital (2011): If a supervisor performs (1) an act motivated by antimilitary animus which he intends to cause an adverse employment action, and (2) if that act is a proximate cause of the ultimate employment action, then the employer is liable under USSERA. Supervisor harbored hostility to P’s military obligations; his disciplinary actions led to termination.
General tort law: Did the actor desire the consequences of his act or believe that the consequences are substantially certain to result from them?
4-Part Test to Determine Liability [Except in Hostile Work Environment Claims]:
3. The bad actor must be acting as an agent, w/in the scope of employment,
[It’s unclear whether this applies to co-workers outside P’s chain of command.]
4. The actor must have had an evil motive,
5. The actor must have intended the specific adverse employment incident that happened to the plaintiff, [Staub introduced this] and
6. The bad actor’s actions must have proximately caused the adverse employment incident. [Proximate Cause—Staub also eliminated a doctrine allowing an employer to escape liability by conducting an indpt. investigation to determine if the reason is valid.]
